Opinion
No. COA12–1374.
2013-06-18
Christopher D. ROGERS, Plaintiff, v. Charles E. SMITHSON, Defendant.
Robert L. White and James R. Streeter for Plaintiff–Appellee. Young Moore and Henderson, P.A., by Glenn C. Raynor, for Unnamed Defendants–Appellants Progressive Direct Insurance Company and Progressive Universal Insurance Company.
Appeal by Unnamed Defendants from order entered 25 July 2012 by Judge Marvin K. Blount, III in Superior Court, Pitt County. Heard in the Court of Appeals 23 April 2013. Robert L. White and James R. Streeter for Plaintiff–Appellee. Young Moore and Henderson, P.A., by Glenn C. Raynor, for Unnamed Defendants–Appellants Progressive Direct Insurance Company and Progressive Universal Insurance Company.
McGEE, Judge.
Christopher D. Rogers (Plaintiff) alleged that he was injured when an all-terrain vehicle he was operating was struck by an automobile driven by named defendant Charles E. Smithson (Smithson). Plaintiff initiated this action against Smithson on 29 November 2010. Plaintiff placed two insurance carriers, American Reliable Insurance Company (American Reliable) and Progressive Direct Insurance Company (Progressive Direct), on notice of the claims asserted against Smithson. American Reliable and Progressive Direct separately filed answers to Plaintiff's complaint, as unnamed party defendants. Upon Plaintiff's motion, the trial court entered default against Smithson on 15 November 2011.
Progressive Direct filed a consent motion for declaratory judgment on 20 December 2011 seeking declaration that “Progressive Direct afforded no insurance coverage for the accident for which [P]laintiff claimed damages in the original complaint.” A hearing on the consent motion was conducted on 17 January 2012. At the end of the hearing, the trial court announced its ruling that Progressive Direct “would be required to afford [uninsured motorist/underinsured motorist] coverage[,]” but did not enter its order by reducing it to writing and filing it with the Clerk of Superior Court. Progressive Direct was joined by unnamed defendant Progressive Universal Insurance Company (together with Progressive Direct, Unnamed Defendants) in filing a motion for reconsideration of the 20 December 2011 motion for declaratory judgment. By order entered 25 July 2012, the trial court denied Unnamed Defendants' motion to reconsider. Unnamed Defendants filed notice of appeal from the 25 July 2012 order.
I.
The dispositive issue in this matter is whether Unnamed Defendants' purported appeal is properly before us. We hold that it is not and dismiss.
Unnamed Defendants “acknowledge that the better reasoned analysis on these facts would probably result in a conclusion that the trial court's Order denying the Motion for Reconsideration is interlocutory.” We agree.
“Orders denying ... a motion to reconsider are interlocutory .” Zairy v. VKO, Inc., 212 N.C.App. 687, ––––, 712 S.E.2d 392, 394 (2011) (citations omitted); see also Leonard v. Johns–Manville Sales Corp., 57 N.C.App. 553, 554, 291 S.E.2d 828, 829 (1982). The trial court did not certify the order under N.C. Gen.Stat. § 1A–1, Rule 54(b) of the Rules of Civil Procedure for immediate appeal, nor do Unnamed Defendants argue that the denial of their motion to reconsider affects any substantial right of theirs that would be lost without immediate review. Fabrikant v. Currituck Cty ., 174 N.C.App. 30, 36, 621 S.E.2d 19, 24 (2005). Unnamed Defendants' appeal is not properly before us and we dismiss it.
Unnamed Defendants also filed a petition for writ of mandamus with this Court, requesting that we direct the trial court to enter “a written order reflecting [the trial court's] ruling on a Consent Motion for Declaratory Judgment heard ... on January 17, 2012, in the action of Christopher D. Rogers v. Charles E. Smithson (Docket No. 10 CVS 3342).” However, the writ of mandamus is not to be used as a remedy of first resort:
The writ of mandamus is an order from a court of competent jurisdiction to a board, corporation, inferior court, officer or person commanding the performance of a specified official duty imposed by law. .... The writ is employed as a remedy for inaction on the part of the particular official to whom it is directed. It is, therefore, a personal action based upon allegation and proof that the defendant has neglected or refused to perform a personal duty which the plaintiff has a clear legal right to have him perform. .... The courts of this State have no discretion to refuse the writ when it is sought to enforce a clear legal right to which it is appropriate, but it is well settled that the writ will not issue to compel the performance of an act which a [court] shows a willingness to perform without coercion.
Sutton v. Figgatt, 280 N.C. 89, 93, 185 S.E.2d 97, 99–100 (1971) (citations omitted). There is no indication in the record that Unnamed Defendants made any request to the trial court that it enter a written order in this matter; therefore, there is no evidence that the trial court has refused to perform this obligation. Unnamed Defendants' petition indicates that the trial court may have neglected to enter an order on the consent motion for declaratory judgment because Unnamed Defendants filed their motion for reconsideration before the trial court had the opportunity to enter its order. Unnamed Defendants should first submit their request to the trial court before seeking writ of mandamus from this Court. Unnamed Defendants' petition for writ of mandamus is denied.
Appeal dismissed; writ of mandamus denied.